Mrs. Jane F. Garvey
Federal Aviation Administration
AOA-1, Room 1010
800 Independence Ave., SW
Washington, DC 20591
Dear Administrator Garvey:
As you know, the Aircraft Owners and Pilots Association (AOPA), represents the aviation interests of more than 345,000 pilots and aircraft owners and is deeply concerned with the recently published Federal Aviation Administration (FAA) interpretive rule concerning a pilotï¿½s responsibility for compliance with air traffic control (ATC) clearances and instructions. This action seems contrary to your efforts under the "Safer Skies Initiative" to improve aviation safety. As you are aware, AOPA and the AOPA Air Safety Foundation, as shown by our participation on numerous Joint Safety Analysis Teams (JSATs), are very active and supportive of your safety initiative programs. You and I have discussed the establishment of reasonable safety metrics which could reflect the progress being made toward reducing fatal general aviation accidents. This interpretive rule sends the message that FAA absolves itself of any responsibility for error detection in the controller-pilot interface. This action runs the risk of actually decreasing aviation safety, thus jeopardizing your "Safer Skies Initiative" and making the agreed upon safety metrics unachievable.
Specifically, this interpretive rule, published in the Federal Register on April 1, 1999, seeks to overturn a series of recent National Transportation Safety Board (NTSB) enforcement decisions regarding the responsibility of pilots to hear and comply with air traffic control clearances and instructions. In effect, the interpretive rule absolves air traffic personnel of any legal responsibility to correct known or detectable misunderstandings between the pilot and controller. Instead, it places the full responsibility for comprehension and compliance with ATC instructions and clearances squarely on the shoulders of the airman.
AOPA strongly believes the pilot and air traffic controller have a shared responsibility to maintain the integrity of the air traffic system and keep aviation safe. Operating in the National Airspace System is a team effort. If a pilot hears a transmission directed to his aircraft and honestly believes he understands the transmission and reads the substance back to the controller, the pilot should be able to rely on the controller to reasonably correct any inaccuracies. In the interest of safety, both the pilot and controller must have shared responsibility in ensuring accurate and timely communication of ATC instructions and clearances.
One of the primary methods employed by pilots to ensure ATC instructions are clearly understood is to repeat or read back the information while acknowledging the ATC transmission with the aircraft registration or flight number. This serves to ensure the instruction or clearance were both accurately understood and received by the correct aircraft. However, the interpretive rule suggests a pilot's read-back may be ill advised or irrelevant, thus discouraging communication between the pilots and the controllers. However, the office of the Administrator has stated, in the context of numerous enforcement cases involving an ATC deviation, that aviation safety depends on the development of mutual trust and confidence between air traffic controllers and pilots. If this is not the case, I can only wonder why the FAA and industry are spending such enormous resources on human factors research aimed at assuring messages sent over the future Controller-Pilot Data Link Communications (CPDLC) network are accurately sent and received. In the message sets being established, it is clear that error checking and confirmation are critical to movement toward this new technology of communications. Why wouldnï¿½t that same error checking be part of the analog voice system which will continue to be used for all time-critical messages?
There has been no demonstration of intent on the part of pilots to mishear or misconstrue ATC clearances and instructions, just as there is no demonstration intent on the part of ATC to give bad instructions. Pilots are trained to question improper ATC clearances or instructions and are held accountable for accepting something they know or have reason to believe is incorrect or unsafe. Likewise, in the interest of safety, controllers should have a similar responsibility. ATC personnel and pilots are not, and must not be, placed in an adversarial relationship with respect to responsibility and culpability. As near as we can tell, the sole purpose of this interpretive rule is to shift liability and responsibility for proper communication and execution of ATC instructions to the pilot without any regard to aviation safety. In our view, this interpretive rule can only serve to hinder free communications between pilots and controllers, a situation that can only lead to a reduction in aviation safety in the National Airspace System.
In addition to safety implications, the issuance of this interpretive rule establishes several undesirable legal precedents that could have a profound impact on the evaluation of future airmen certificate actions and pilot deviation cases. The use of this interpretive rule brings the role of the NTSB in reviewing FAA enforcement actions strongly into question. By using the interpretive rule to overturn NTSB lines of decisions, the FAA appears to be frustrating or possibly negating Congress' intent that the NTSB has authority to review FAA actions in the interest of aviation safety.
As you are aware of course, the Administrator of the FAA has the authority to prescribe regulations and minimum standards the Administrator finds necessary for safety in air commerce. In this regard, the FAA has promulgated section 91.123(a) and (b) to set the
standard for an airman's compliance with air traffic control instructions and clearances. The Administrator also has the authority to conduct an investigation into an airman's conduct and to issue an order suspending or revoking the airman's certificate for the
conduct if safety in air commerce and the public interest requires it. Thus, the FAA may suspend, and generally does suspend, an airman's certificate for violating section 91.123(a) or (b).
In the instances where the FAA takes action against an airman's certificate, the airman is entitled to have that action reviewed by the NTSB. After review, the NTSB has the authority to amend, modify, or reverse the FAA's action upon a finding that safety in air commerce and the public interest does not require the FAA's action. During its review, and in making its findings, the NTSB is not bound by the FAA's findings of fact, but it is bound by all validly adopted interpretations of FAA regulations, unless the NTSB finds the FAA's interpretation is arbitrary, capricious, or otherwise not according to law.
Over time, the NTSB has had many opportunities to review the FAA's actions in ATC deviation cases. The NTSB has most often decided these cases in favor of the FAA, however, in several select cases, the NTSB has decided in favor of the airman. In those instances, the NTSB has evaluated the facts and circumstances and explained its reasons for finding for the airman. In each cases, the NTSB has based its decision on what safety in air commerce and the public interest may require. Clearly, the FAA is not content with the NTSB's exercise of its jurisdiction in this regard. Rather, the issuance of the interpretive rule clearly demonstrates the apparent frustration within the FAA brought about by the checks and balances the NTSB is providing in these cases.
By issuing this interpretive rule, the FAA clearly intends to bind the NTSB to decide these cases in the FAA's favor, instead of allowing the NTSB to exercise its independent authority in this area. In so doing, the FAA appears to be stripping the NTSB of its statutory function to review FAA enforcement actions to determine whether safety in air commerce or air transportation and the public interest require affirmation of the FAA's action. This interpretive rule demonstrates the FAAï¿½s intent to maintain control over the outcome of these cases. However, this seems contrary to the fair and just principles of the law. The issuance of this interpretive rule is a reaction to NTSB decisions that ruled against the FAA's position. In effect, the FAA seems to be reacting simply because it lost. There is nothing patently wrong or contrary with the NTSB decisions that require the FAA's issuance of this interpretive rule. Thus, we feel the FAA has abused its discretion.
While there are many FAA regulations that may not be fully understood without the guidance provided by FAA interpretations, where a rule is plainly written as it is in the case of section 91.123, further interpretation is unnecessary. Rather, review of its application should be based on the logic commanded by a particular set of facts and circumstances and this review should be conducted by the NTSB under its statutory authority. In this case, we believe the NTSB lines of reasoning are fair, firmly grounded in the basis of the regulations, and consistent with the needs of aviation safety.
A further concern with this interpretive rule is the appearance that the document was not internally coordinated within the FAA. Based on the contact information contained in the interpretive rule, it appears this document emanated from the air traffic and the legal divisions of the FAA. This is disturbing because the interpretive rule strongly serves the direct interests of these two divisions. From our perspective, the FAA Flight Standards Division possesses the expertise necessary to render an interpretation on how pilots should act in complying with a regulation. This is the only division of the FAA that could even remotely be identified as having the interest of the pilot at heart. There is no evidence in the interpretive rule that the Flight Standards Service had significant input into this document, let alone signed off on it. AOPA is concerned that far too much self-interest has guided the issuance of this interpretive rule without regard to its impact on pilots, the public interest, and aviation safety.
AOPA maintains this interpretive rule is ill conceived on many fronts. Most onerous is the fact it has the strong potential to break down the cooperative relationship between pilots and controllers required to promote and ensure aviation safety and the public interest. Furthermore, it appears to be an abuse of the FAAï¿½s discretion to interpret its own regulations and frustrates congressional intent to have a system of checks and balances in the legal review of the FAA regulations by the NTSB. Consequently, we implore you to withdraw this interpretive rule concerning pilot responsibility for compliance with air traffic control clearances and instructions. Further, we urge the FAA to reexamine its use of the interpretive rule as an inappropriate mechanism for overturning legitimate and proper lines of NTSB reasoning in appeals cases.